Terms and Conditions of Sale

DEWESoft, LLC Terms and Conditions of Sale

1.                   General.  These Terms and Conditions of Sales (“Terms”) are entered into by DEWESoft, LLC (“DEWESoft”) and the purchaser identified on DEWESoft’s order acknowledgement (“Purchaser”).  No purchase order (“Order”) for any of DEWESoft’s products (“Goods”), repair services (“Services”), or parts (“Parts”) is binding on DEWESoft until acknowledged in writing by DEWESoft.  These Terms and DEWESoft’s acknowledgement constitute the entire agreement (the “Agreement”) between Purchaser and DEWESoft.  Any terms contained in a Purchaser Order, offer, counteroffer, or referenced in any communications, which seek to modify, add to, or are inconsistent with these Terms are hereby rejected and of no force and effect.  Acceptance of this Agreement is expressly made conditional upon Purchaser’s assent to these Terms.  DEWESoft will in no way be deemed to have agreed to change, modify, or expand its liabilities or obligations as fixed by these Terms.  Purchaser will be deemed to have agreed to these Terms upon execution by both parties of the Terms where indicated below. 

 

2.                   Price.  Prices contained in quotes are valid for thirty (30) days from the date of issuance.  Tariffs imposed on the Goods will be listed as a line-item in any quote and invoice.  All prices are reflected in United States Dollars and exclude sales, excise, state, municipal taxes, or any other government charges.  All taxes and government charges due in connection with the sale of Goods shall be paid by Purchaser unless Purchaser supplies DEWESoft with applicable documentation from the relevant taxing authority that Purchaser is exempt from paying such taxes and government fees. 

 

3.                   Payment Terms. Invoices are due and payable by Purchaser within thirty (30) days of receipt of such invoice.  Invoices are issued upon shipment of the Goods. Past due amounts under invoices will be assessed interest at the greater of: (i) 3% per annum, or (ii) the maximum interest rate permissible to charge under applicable law.  If any amounts are not paid when due under an invoice, DEWESoft reserves the right to suspend its performance hereunder, including the delivery of any Goods until all overdue amounts are paid in full without liability to Purchaser.  Notwithstanding the foregoing, in the event that Purchaser fails to pay any overdue amounts within seven (7) calendar days of receipt of DEWESoft’s written demand for payment, then DEWESoft shall have the option to immediately terminate this Agreement for cause and without prejudice to any other rights or remedies it may have under this Agreement or applicable law. Item descriptions and specifications are subject to change.  Please check www.dewesoft.com for the latest specifications on Goods.  Credit card orders are subject to a 3% service charge. 

 

4.                   Delivery.  Lead times for Goods vary based on the type of Goods so Purchaser is encouraged to inquire about current lead times.  DEWESoft will undertake commercially reasonable efforts to meet any mutually agreed upon delivery date contained in DEWESoft’s written acknowledgement, provided, however, that DEWESoft will have no liability for any delay in delivery that is caused by reasons beyond DEWESoft’s reasonable control, including, without limitation, changes made by Purchaser, force majeure events, or delays in transportation or the inability to obtain necessary materials, labor or facilities.  Shipping is Ex Works DEWESoft’s facility (Incoterms 2020).  Risk of loss shall transfer from DEWESoft to Purchaser upon DEWESoft tendering the Goods to Purchaser’s chosen carrier. 

 

5.                   Returns.  Goods that are unused and in their original packaging may be returned within fifteen (15) days after purchase, but are subject to a 40% restocking fee.  No refunds or credits will be issued for shipping charges, credit card fees, or other fees.  DEWESoft reserves the right to issue credit memos for any refunded amounts pursuant to this Section.  Unless otherwise prohibited by applicable law, credit memos shall expire twenty-four (24) months from the date of issuance. 

 

6.                   Inspection.  Upon receipt, Purchaser shall inspect the Goods.  Any notice for claims, including non-conforming or defective Goods must be made in writing by Purchaser to DEWESoft within fourteen days of receipt of such Goods (the “Inspection Period”).  If no claim is made within the Inspection Period, the Goods will be deemed to have been accepted. 

 

7.                   Warranty.  DEWESoft warrants that the Goods have been produced in accordance with DEWESoft’s published standards and DEWESoft’s Standard Warranty, which is incorporated by reference herein and is the manufacturer’s warranty, which DEWESoft passes on to Purchaser.[1]  If Goods are non-conforming or defective, then DEWESoft will handle such non-conformance or defects in accordance with the terms of its Standard Warranty.  In addition to the foregoing, DEWESoft warrants any Services that DEWESoft renders pursuant to a mutually agreed upon Order will be performed in a good and workmanlike manner by personnel with the requisite skills to perform the Services for a period of one year from the date of shipment of the serviced product.  In the event of a breach of the foregoing warranty for Services, DEWESoft will, at its option: (i) repair or re-perform the Services, or (ii) refund the purchase price actually paid by Purchaser to DEWESoft for the applicable Services, which may be paid in a credit memo issued by DEWESoft unless otherwise agreed upon by the parties.  The foregoing warranties in this Section 7 and Exhibit A represent Purchaser’s exclusive remedies and DEWESoft’s sole liability for the breach of warranties regarding Goods and/or Services are made in lieu of all other remedies available at law or in equity.   EXCEPT FOR THE WARRANTIES IN THIS SECTION 7 AND DEWESOFT’s STANDARD WARRANTY, DEWESOFT MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE GOODS AND/OR SERVICES, AND FULLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES IMPLIED BY VIRTUE OF COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE, TRADE PRACTICE, OR OTHERWISE. DEWESOFT PROVIDES NO WARRANTIES REGARDING ANY CALIBRATION SERVICES, WHICH ARE PROVIDED “AS IS.”

 

8.                   Intellectual Property.  Purchaser acknowledges and agrees that the Goods may contain certain intellectual property rights, which belong exclusively to DEWESoft and its licensors.  Nothing contained herein or any order confers any right, title, or interest in or to any intellectual property owned by DEWESoft or its licensors.  DEWESoft hereby confers a limited, perpetual, non-transferrable (except in accordance with Section 14), non-sublicenseable license to Purchaser to use any DEWESoft intellectual property that is contained within any Goods only to the extent necessary to permit Purchaser to use the Goods as contemplated in DEWESoft’s documentation and for Purchaser’s internal business purposes only.  Purchaser agrees that it will not reverse engineer or otherwise try to decompile, decode, or otherwise discover any of DEWESoft’s or its licensor’s intellectual property contained within any Goods. 

 

9.                   Changes; Cancellation.  Purchaser shall have not right to make changes or to cancel any Order under this Agreement following DEWESoft’s commencement of the production of any specially manufactured Goods for Purchaser, DEWESoft’s preparation of the Goods or serviced units (in connection with the Services) for shipment, unless otherwise agreed upon in writing and provided that Purchaser pays for any costs incurred by DEWESoft prior to the cancellation or any increase in costs that are as a result of any modification.  Orders cancelled more than three (3) business days following confirmation are subject to a 20% cancellation charge. 

 

10.                Indemnification.  Purchaser agrees to fully defend, indemnify, and hold DEWESoft, including its directors, officers, employees, agents and representatives harmless from and against any and all third party claims, lawsuits, causes of action, and other proceedings and to pay all liabilities, losses, judgments, settlements, penalties, interest, costs, damages and expenses (including attorneys’ fees and court costs) actually incurred by DEWESoft as a result of Purchaser’s failure to use the Goods in accordance with DEWESoft’s published documentation. 

 

11.                Limitation of Liability. DEWESoft’s liability for any claim arising out of or in connection with this Agreement shall be limited to the price allocable to the Good, SERVICE, OR CALIBRATION, AS APPLICABLE, for which the claim arises.  TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, DEWESOFT SHALL NOT BE LIABLE TO PURCHASER OR ANY OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL DAMAGES, OR LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOODWILL, DAMAGE OR LOSS TO REPUTATION, OR ANY OTHER SIMILAR TYPE OF NON-DIRECT DAMAGES.  ANY ADVICE PROVIDED BY ANY DEWESOFT EMPLOYEE IS PURELY INFORMATIONAL AND IS PROVIDED EXCLUSIVELY AT THE PURCHASER’S RISK AND WITHOUT LIABLITY TO DEWESoft.  Purchaser’s remedy for a defective or non-conforming Good or Service is repair, re-performance (for a Service), or replacement of such Goods in accordance with Section 7.  The limitations in this Section 11 shall apply regardless of whether the claim is based in contract, tort (including negligence) or some other theory of liability and regardless of whether DEWESoft was warned of the possibility of such damages or such damages were reasonably foreseeable.  This limitation of liability and the remedies reflect a deliverable and bargained-for allocation of risk between the parties. 

 

12.                Export Control.  Purchaser acknowledges and agrees that the Goods, and/or Services may be subject to export control laws in the United States and Canada, as applicable, and are only authorized for export to the country of ultimate destination for use by the ultimate consignee or end user identified in the Order.  The Goods, and/or Services may not be resold, transferred, or otherwise disposed of, to any other country or to any other person except the authorized ultimate consignee or end user, without obtaining approval from the applicable government or as otherwise authorized by applicable law and regulation.  Purchaser agrees to comply with all laws and regulations, and agrees to indemnify DEWESoft against any loss or liability due to Purchaser’s non-compliance with these requirements or any violation of export control laws.

 

13.                Amendment or Modification.  This Agreement may only be amended in a writing signed by duly authorized representatives of Purchaser and DEWESoft.  With respect to DEWESoft, only an officer may be deemed to be an authorized representative. 

 

14.                Assignment.  Purchaser shall not assign, delegate, or transfer its rights or obligations under this Agreement without the prior written consent of DEWESoft, which shall not be unreasonably withheld. 

 

15.                Severability and Waiver.  If any provision of this Agreement is deemed to be illegal, invalid or unenforceable by a court of competent jurisdiction, such a determination shall not impact all other terms and conditions of this Agreement which shall continue in full force and effect.  No waiver shall be effective against a party hereto unless the right or privilege being waived is expressly identified in a writing signed by a duly authorized representative of the party against whom enforcement is sought. 

 

16.                Governing Law; Disputes.  This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without regard for any conflict of law rules or procedures that might result in the application of laws other than those of the State of Ohio.  For any dispute, controversy, matter of interpretation, or other proceeding arising out of or in connection with this Agreement, the parties hereto irrevocably consent to the exclusive jurisdiction of and venue in the state and federal courts in and for Lucas County, Ohio and irrevocably waive any claim or challenge that the jurisdiction of or venue in such courts is improper or inconvenient.  The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments shall not apply to this Agreement.

 

17.                Waiver of Jury Trial.  Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action or counterclaim arising out of or relating to this Agreement, or the transactions contemplated hereby. Each party certifies and acknowledges that (a) no representative of the other party has represented, expressly or otherwise, that the other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) it has considered the implications of this waiver, (c) it makes this waiver knowingly and voluntarily, and (d) it has decided to enter into this agreement in consideration of, among other things, the mutual waivers and certifications in this section.

 

18.                Force Majeure.  DEWESoft shall not be liable for any breach or non-performance to the extent such is caused by a Force Majeure Event.  A “Force Majure Event” means any event beyond the reasonable control of DEWESoft, including, without limitation, acts of God, war, terrorism, civil disobedience, riots, insurrections, civil unrest, acts of nature such as a flood, earthquake, hurricane, tornado, epidemics, pandemics, labor disputes, governmental acts (including, but not limited to, changes in laws, regulations, embargos, tariffs unforeseeable at the time of contracting), or any other cause beyond the reasonable control of the affected party.  If there is a Force Majure Event, DEWESoft shall promptly provide written notice to Purchaser with the expected duration and shall use good faith efforts to minimize the disruption and to resume its performance as soon as possible after the Force Majeure Event ends.